Opinion
No. 15–P–804.
05-25-2016
Monique NORMANDIN v. Christopher NORMANDIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Christopher Normandin (father), appeals from a modification judgment entered in the Probate and Family Court which reduced his parenting time and increased his child support payment to Monique Normandin (mother). We reverse the judgment with respect to parenting time and affirm with respect to the child support obligation.
Background. The parties were married in October, 1999, and had two children: Gabriella, born in 1996, and Christopher, born in 2002. The parties were divorced in 2008, pursuant to the terms of a separation agreement which merged with the judgment of divorce. The agreement provided that the parties would share legal and physical custody, but the children would reside primarily with the mother. The agreement provided for equal parenting time until the father became employed at which point it stated “the parties shall continue to co-parent the children on a basis which takes into account [h]usband's then current employment schedule.” The parties thereafter agreed, informally, to a parenting schedule that evolved over time. At the time the complaint for modification was filed, Christopher stayed with the father on Tuesday and Thursday overnight and every other weekend.
The parties stipulated at the time of trial that Gabriella had turned eighteen and therefore issues relating to her custody were moot. The judge ruled that the primary issue at trial was the parenting of Christopher.
When the parties divorced, they agreed that the father would pay child support in the amount of $200 per week during the time that he was unemployed and that they would consult about a recalculation of child support when the father obtained work. According to the father's financial statement, at the time the complaint for modification was filed, he was employed and had gross earnings of $1,615 per week.
On April 3, 2013, the mother filed a complaint for modification seeking increased child support based on the father's changed employment circumstance. She also sought a specific parenting schedule, alleging that the current schedule was vague, inconsistent, and did not provide for quality time with either parent. The father filed his own complaint for modification seeking physical custody of Gabriella and a shared parenting schedule for Christopher.
Following a consolidated trial on the complaints, the judge modified the divorce judgment as follows. The father was awarded parenting time on Wednesday evenings and every other weekend. In addition, a vacation schedule provided that the father would have Christopher on Father's Day; on Christmas, February, and April school vacations on alternating years; and for two weeks during summer vacation. The mother had custody of Christopher at all other times. The judge also increased the father's child support payments to the mother from $200 to $276 each week.
Discussion. A judgment as to the care, custody, and support of minor children may be modified if there is a material and substantial change in the circumstances such that modification is necessary and in the best interests of the child. See G.L. c. 208, § 28 ; Katzman v. Healy, 77 Mass.App.Ct. 589, 593 (2010). We review for abuse of discretion with deference to the judge who heard and saw the evidence. Pierce v. Pierce, 455 Mass. 286, 293 (2009). “[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives .” Hoegen v. Hoegen, 89 Mass.App.Ct. 6, 9 (2016), quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
1. Parenting time. The change in the parenting schedule was driven in large measure by Christopher's extracurricular activity schedule. The father conceded that, as the mother alleged, he did not take Christopher to these activities if they conflicted with his Tuesday evening church activities, which start at 7:00 P.M. However, the judge found “that the father will prevent Christopher from participating in any extra-curricular activities that may interfere with the times there are church activities such as Tuesdays and Sundays or with plans the father may have made with his family ” (emphasis supplied). The latter part of this finding, that the father would place any of his own or his family's plans over Christopher's activities, is clearly erroneous. While the father was adamant about not scheduling activities for Christopher that would interfere with the family's religious observances, his inflexibility did not extend to any other “plans.” Indeed, with respect to Christopher's activities outside of that time, he testified, “I'm fine with any of it.”
At various times, Christopher participated in basketball, gymnastics, boxing, Tae Kwon Do, and Boy Scouts.
Due to the father's religious affiliation, he does not celebrate holidays. He customarily took the children to his church on Tuesday evenings and Sundays.
The judge concluded that Christopher's participation in extracurricular activities was in his best interest, that the father prevented Christopher from participating in those activities when they conflicted with the father's plans, and that the parties were unable to share parenting of Christopher without a detailed parenting schedule. The judge reasoned that the modified schedule would foster a good relationship with the father, allow Christopher to participate in the activities he chose, and eliminate conflict between the father and Christopher concerning the activities.
We are not persuaded that it was an abuse of discretion to conclude that there was a material change in circumstances. Although the judge did not make an explicit finding of changed circumstances, she did so implicitly by finding that the parties required a detailed parenting schedule. In addition, the six year difference in the child's age and his increased interest in extracurricular activities from the time of the divorce to the time of this action were substantial and material changes that were central to the judge's decision and implicit in her reasoning.
It was implicit in the judge's decision that a parenting schedule that allowed Christopher to participate in such activities was in his best interest. She explicitly found that “it is in the child's best interest to allow him to participate in the sports activities he selected.” The change in the parenting schedule was intended to facilitate Christopher's participation in those activities and to reduce the potential for conflict concerning his participation. However, the schedule that the judge implemented did not achieve these goals. The judge found that Christopher's Tae Kwon Do classes take place from 4:00 to 5:00 P.M. on Tuesdays, and that the mother had no objection to the father picking Christopher up after school to take him to these classes. The father's Tuesday evening church activities took place at 7:00 P.M. Thus, there is no conflict on Tuesday evenings; eliminating the father's Tuesday parenting time did nothing to facilitate Christopher's participation in sports or to eliminate conflicts. Conversely, after finding that Christopher attends Boy Scouts from 7:00 to 8:30 P.M. on Wednesday evenings, the judge gave the father parenting time on Wednesdays from 3:00 to 8:00 P.M., creating a new conflict that did not exist previously.
It is not clear even that religious activities continue to create a conflict. At the time of trial, it appeared that neither the father nor the mother was affiliated with the church.
“On the basis of the evidence presented, the judge must identify the parenting and living arrangement that ‘can best satisfy the child's welfare and happiness.’ “ Smith v. McDonald, 458 Mass. 540, 544 (2010), quoting from Opinion of the Justices to the Senate, 427 Mass. 1201, 1204 (1998). “At the same time, the court must not pursue blindly some ‘optimum’ arrangement for the child and must give due regard to the adequacy of the status quo.” Ibid. Here, the judge significantly reduced the father's parenting time. While such a reduction might be warranted if it served to further Christopher's welfare, the schedule the judge imposed failed to facilitate extracurricular activities or to eliminate scheduling conflicts. Accordingly, we conclude that the judgment as it relates to parenting time was an abuse of discretion. Given the passage of time since the modification judgment, we vacate this aspect of the judgment and remand for a new trial on the matter of parenting time.
2. Child support. The judge increased the father's child support obligation for Christopher based on the changed financial circumstances of the father and the child support guidelines. The father claims the judge erred because she failed to take into account the father's support of Gabriella, who, he suggests, was still in high school and his dependent at the time of the trial. The judge considered, but did not award child support for Gabriella, reasoning that “there was no prayer for it in the father's [c]omplaint nor was there any testimony about whether or not Gabriella attended a full time program.” In relevant part, the separation agreement provided that emancipation of the children for child support purposes would occur when they attained “the age of [e]ighteen (18) years, or graduation from high school without plan for future education as a full-time student; or if attending a vocational training school or college as a full-time student at age [t]wenty-three (23).” Here, Gabriella was eighteen years old, but had not graduated from high school. She studied auto mechanics three days per week at a vocational school, and worked twelve to thirty hours per week as an auto mechanic at Harr Dodge. Mindful that we must give due deference to the fact finder, Pierce, 455 Mass. at 293, we discern no error in the judge's finding that there was no evidence that Gabriella attended a full-time rather than part-time program. We also conclude that the judge properly considered the father's failure to seek support for Gabriella in his complaint for modification. Accordingly, the judge did not abuse her discretion when she modified child support based solely on the parties' financial statements and the Massachusetts Child Support Guidelines.
Conclusion. We vacate so much of the judgment of modification that relates to parenting time and remand that matter for further proceedings consistent with this memorandum order. In all other respects, the judgment of modification is affirmed.
So ordered.